The passage of Australia’s data retention regime: national security, human rights, and media scrutiny

Abstract

In April 2015, the Australian Government passed the Telecommunications (Interception and Access) Amendment (Data Retention) Act, which imposes obligations on Internet Service Providers (ISPs) to collect metadata information about their users and store this metadata for a period of two years. This article reviews the operation of the Act and considers the extent to which it conflicts with the human right to privacy. We suggest that the broad scope of the data retention obligations and the lack of judicial safeguards to limit access to collected data presents a clear conflict with the requirements of international law. From its conception through to its ongoing implementation, Australia’s data retention scheme has been controversial. The Government has generally asserted that data retention is necessary to further Australia’s national security interests and to assist law enforcement agencies with criminal investigations. In the face of criticism, however, Government officials have been notably unable to justify the scheme on these grounds, or to show that data retention is a proportionate response to national security and law enforcement concerns. The passage of data retention in Australia is particularly notable for the significant confusion not only over what the scheme would achieve, but what it would actually do. The Data Retention Act does not clearly explain what constitutes “metadata” for the purposes of the Act, nor, famously, was the Attorney-General George Brandis able to define metadata when asked about it. This is part of a broader narrative of disagreement and confusion about what data is suitable for collection and how data collection can impact upon the privacy interests of Australian citizens. We examine how public interest concerns were dealt with during the passage of the Act as reflected in Australian news media. While the Act was controversial and subject to substantial ongoing criticism, the Government ultimately did little to address the human rights concerns that had been raised. The Act was ultimately passed with bi-partisan support, despite severe deficiencies in the justifications, a lack of clarity in the operation of the scheme, and heated public opposition from a small but vocal group of advocates. We show how the complexity of the Act appeared to limit engaged critique in the mainstream media, and how escalating fears over domestic and international terrorist attacks were exploited to secure the Act’s passage through federal Parliament.